This matter is before the Court on English Boiler & Tube, Inc.'s Motion for Summary Judgment, filed on October 17, 2013. For the reasons set forth below, this motion is DENIED.

BACKGROUND

The University of Notre Dame Du Lac ("Notre Dame") initially brought a breach of contract action against English Boiler & Tube, Inc. ("English Boiler") in the Circuit Court of St. Joseph's County, Indiana, arising out of a contract related to a construction project on Notre Dame's campus. The case was then removed here. English Boiler has filed the instant motion for summary judgment, asserting there is no genuine dispute of material fact and that it is entitled to judgment as a matter of law.

DISCUSSION

Summary judgment standard

Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. In determining whether summary judgment is appropriate, the deciding court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). "However, our favor toward the nonmoving party does not extend to drawing inferences that are supported by only speculation or conjecture." Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v. C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).

A party opposing a properly supported summary judgment motion may not rely on allegations or denials in her own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the non-moving party fails to establish the existence of an essential element on which he or she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). While a non-moving party's failure to respond to summary judgment does not automatically result in judgment for the movant, a court may deem the facts in the moving party's statement of uncontested facts as admitted to the extent the facts are supported by evidence in the record. Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012).

Facts

On or around February 7, 2005, Notre Dame and English Boiler entered into an agreement entitled Lump Sum General Bid Contract Between The University of Notre Dame and English Boiler and Tube, Inc. for Packaged Steam Boiler No. 6 Project ("the Contract"). The Contract related to a construction project on Notre Dame's campus, referred to as "Package Steam Boiler No. 6, " under which English Boiler agreed to manufacture a boiler complete with the necessary auxiliary equipment ("Boiler No. 6") for Notre Dame (the "Project"). English Boiler purchased the Economizer from English Boiler's subcontractor, Applied Heat Recovery ("Applied Heat"). (Def's Ex. C, Dep. of John R. English, p. 30). The Economizer is "a heat recovery device designed to transfer heat from the products of combustion to boiler feedwater." AM. BOILER MFR.'S HANDBOOK OF POWER, UTIL. AND BOILER TERMS AND PHRASES, 110 (PennWell Books 6th ed. 1992).

Boiler No. 6 was completed on or about July 12, 2007. (Def's Ex. D, Notre Dame's Answers to English Boiler's Second Set of Interrogs.). Startup of Boiler No. 6 commenced on or about July 12, 2007 and was completed on or about July 30, 2007. (Ex. D, No. 2.). Boiler No. 6 "was [first] fired for regular production of steam" on July 30, 2007." (Ex. D, No. 3; Def's Ex. E, Dep. of Mark L. Hummel 59, 63). Notre Dame made the final payment for English Boiler's work pursuant to the Contract on or about March 5, 2008. (Ex. E, 64).

Subparagraph 2(f) of the Contract states, in pertinent part, "the Work will be free from materials and workmanship defects and in conformance with the Contract Documents." (Def's Ex. B). Further, subparagraph (g) states, in pertinent part, that:

The Contractor warrants to the Owner that the goods provided by the Contractor at the time of shipment will be free from material defects in material and workmanship and, that the goods will conform in all material respects to the Owner's specifications. This warranty shall be ineffective and shall not extend to goods subjected to misuse, neglect, accident or improper installation or maintenance, goods which have been altered or repaired by anyone other than the Contractor or its authorized representative. The warranty for boiler pressure parts shall be five (5) years from the date of final completion or five (5) years plus six (6) months after "first fire", whichever period ends first. The warranty contained herein is made only to and for the exclusive benefit of the Owner, and does not extend to any subsequent purchaser or user of the goods or of any product at which the goods may be a component part. THE ABOVE WARRANTY COMPRISES THE CONTRACTOR'S SOLE AND ENTIRE WARRANTY OBLIGATION.

(Ex. A, ¶ 2(g)(emphasis added)).

On March 25 and April 26, 2010, Notre Dame alleged that members of its Utilities Department discovered three leaks in the tubes of Boiler No. 6. (Def's Ex. G, Notre Dame's Answers to English Boiler's First Interrogs., No. 2; Ex. E, p. 67-70). The Economizer's tubes are pressure parts. (Ex. C, p. 71). Centerline Mechanical Contracting, Inc. ("Centerline"), at Notre Dame's request, made repairs to the leaks on approximately March 28 and April 29, 2010. (Ex. G, No. 161; Ex. E., p. 73-82). Since approximately April 26, 2010, Notre Dame has discovered no other leaks in the Economizer. (Ex. G, No. 15; Ex. E, p. 93-94). Since April 29, 2010, the Economizer has functioned as required by Notre Dame without any leaks or issues other than normal maintenance issues. (Ex. E, p. 93-94; Def's Ex. I, Dep. of John M. Koltick, Jr., P.E., pp. 59-60).

While repairing the Economizer, Notre Dame claims to have found other issues with it, including evidence of the casing being removed and patched back and numerous cobbled attempts to reassemble the Economizer casing to the structural framework with shims, lapped metal sheeting, and brackets. (Ex. G, No. 1). Notre Dame further claims that its employees saved sections of the Economizer's failed tube to analyze the welds. (Ex. G, No. 1). Upon ...

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